Landowners on border say they were shortchanged by federal government

Sept. 6, 2012: Cotton farmer Teofilo “Junior” Flores stands on one side of the U.S.-Mexico border fence that passes across his property in Brownsville, Texas.
(AP)

BROWNSVILLE, Texas – When the federal government began seizing private land along the U.S.-Mexico border to build a towering fence, Teofilo Flores was offered $1,650 for a slice of his backyard.

At first, it seemed like a square deal. But then the cotton grower learned that his neighbor had received 40 times more for a similar piece of land. And another nearby farmer pocketed $1 million in exchange for his cooperation.

Since 2008, hundreds of landowners on the border have sought fair prices for property that was condemned to make way for the fence. But many of them received initial offers that were far below market value. And dozens accepted those amounts without seeking any legal help, only to discover neighbors had won far larger settlements after hiring attorneys.

"You get angry. But that's the way of life, I guess," Flores said of the bigger payouts won by other landowners. "You know, people that got more money can afford to do more things."

The disparities raise questions about the Justice Department's treatment of hundreds of landowners from Texas to California who couldn't afford lawyers and must now live with a massive steel barrier running through their farms, ranches and yards.

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The wide variation in price "underscores how unfair these original offers were," said attorney Corinna Spencer-Scheurich, who represented poor and middle-class landowners when the seizures began.

The federal government "is using its power, its clout, to try to take land from people at a price that is unfair. I think that is clear based on the settlements," she said.

Federal attorneys say the initial offers represented only a starting amount that would permit the seizures to begin and could be adjusted later.

In 2006, Congress ordered construction of 670 miles of heavy metal fence to help curb illegal immigration. The project required landowners on the border to give up property that ranged from the size of a driveway to much larger farms and commercial lots.

The Constitution requires the government to provide compensation whenever it takes property for a public project using a process known as eminent domain.

About 400 landowners have been affected. Most are in Texas, because that state has more private property along the border than do New Mexico, Arizona or California, where much of the border land is already in federal hands.

An Associated Press analysis of nearly 300 Texas land cases found that most of the settlement money went to a small group of owners, all of whom had attorneys. The legal help appeared to pay off: Of nearly $15 million that has been paid out, 85 percent has been awarded to just a third of the property holders.

There are other reasons for the larger settlements beyond the advantage of legal representation. Many of the best-compensated landowners oversee large citrus groves or other commercial operations on land that is inherently more valuable.

They also stand to lose more from the rows of 18-foot rust-colored steel posts that now divide their land. Farmers, for instance, have complained that the fence slows down their work because large agricultural machines now have to drive around the bulky barriers.

Most of the fence construction was completed two years ago, but the government is still negotiating for land surrounding the project.

One recent case involved 8 acres at the entrance to a sable palm grove managed by The Nature Conservancy. The government initially offered $114,000, but in August the matter was settled for nearly $1 million.

The fence forced a developer to scrap plans for an entertainment district along the Rio Grande in Brownsville. The government's first offer was $233,300. After a three-year legal battle that almost went to a federal trial, both sides settled for $4.7 million.

But those examples did nothing to help people such as Oscar Ceballos, the owner of a trucking business whose home is on the same half-acre as his fleet of tractor-trailers and his repair garage. Ceballos said he was first offered $1,600 to surrender about 60 feet of his property.

He called the offer ridiculous. But with no money to hire an attorney, he said, he went to a legal-aid clinic that agreed to take his case for free. He joined a group of 28 landowners who demanded a federal jury review their cases -- the fiercest opposition to the fence along the entire border.

Ceballos accuses government attorneys of trying to sabotage his case by uncovering his assets and pressing his lawyer about why a free clinic would accept him as a client.

Eventually, Ceballos said, his lawyer told him he had taken the case as far as he could and suggested hiring a more skilled private attorney if he wanted to wring any more money out of the government. By that point, Ceballos had succeeded in getting nearly $40,000 more.

"They wouldn't have paid me anything close to that if I didn't have legal aid," he said. "I guess that gave me a chance to fight the government a little bit. Some other people didn't know or have the chance to fight the government, and they just took what they were offered."

In response to inquiries from the AP, the Justice Department pointed to a 144-page federal guide on land seizures. When taking land, the government strives "to achieve a fair resolution for both the landowner and American taxpayers," spokesman Wyn Hornbuckle said.

The agency declined to comment on unresolved cases.

Lawyers for the government have argued that the original lowball offers often served merely as down payments to permit the government to take the land quickly so construction could begin. The plan was for full compensation to be paid later after factoring in damage to property and the loss of market value. Some landowners' attorneys concurred with that understanding.

During the earliest stages of the disputes, government attorneys asked that a land commission be created to decide compensation instead of bringing dozens of cases in front of jurors, but a judge rejected that request. No case has ever gone to trial.

Of the 28 landowners who asked for juries, the half who settled received additional checks that were on average 1,200 percent more than the original offer.

"The government finally came to its senses in those cases," said attorney H. Dixon Montague, who negotiated the settlement for the now-dead entertainment district.

Flores signed a final agreement this summer closing his case.

The 75-year-old military veteran said he worked with an attorney for a time but was forced to let him go after being told it would cost $25,000 to get the case inside a courtroom.